Burton v. Fifer

Upon motion of the defendant Finance One of Virginia, Inc., for a reconsideration of a prior oral ruling of the Court on defendant’s plea of statute of limitations, said motion is well taken and the plea is sustained.

The original suit filed by the plaintiff on his claim is Law File No. 2855 in the clerk’s office of this court. The filing date thereof was July 26, 1983. The defamation cause of action it alleged occurred July 26, 1982. Plaintiff moved to nonsuit said action July 16, 1984. The order terminating said suit was entered August 29, 1984. The language of said order is as follows:

On July 16, 1984, plaintiff, Earl R. Burton, moved to voluntarily nonsuit this action, and it appearing to the Court that no cross-claim, counterclaim or third-party claim had been filed, and that it would otherwise be proper to do so, plaintiff’s motion to nonsuit was sustained. It is therefore ORDERED that this action is dismissed without prejudice.

The instant suit was filed January 17, 1985. Plaintiff contends that the six months allowed by Code Section 8.01-229(E)(3) runs from August 29, 1984. Defendant Finance One of Virginia, Inc., contends that it runs from July *23116, 1984. Sections 8.01-229(E)(3) and 8.01-380 both speak in terms of a party suffering a nonsuit. From a reading of Newton v. Veney, 220 Va. 947 (1980), and Nash v. Jewell, 227 Va. 230 (1984), it appears that the suffering of a nonsuit is an action effected at the instance of the moving party requiring no action by the court. In the Nash case, page 237, the Virginia Supreme Court stated that neither the court nor opposing counsel can prevent the plaintiff from taking one nonsuit. The order entered subsequent to the sufferance of a nonsuit is the vehicle by which the litigation is terminated. In the instant case, the nonsuit was suffered July 16, 1984, more than six months prior to the filing of said case.